I’ve just finished reading the California Supreme Court’s decision in In re Marriage Cases (whew! was that a long one!). In many ways, it is a great decision. The court rejected several staple arguments of opponents of same-sex marriage. The court rejected attempts to narrowly define the constitutional right at issue as the”right to same-sex marriage”rather than simply the”right to marry.”The court also rejected the old saw that marriage exists only for purposes of fostering procreation (and, notably, the court rejected the new old saw that same-sex couples don’t need marriage because they are so much more stable than different-sex couples because they can only become parents through deliberate choice and not accident). I was most relieved to see the court reject the idea that same-sex couples need not be given access to marriage because a California domestic partnership can provide them all of the substantive rights and obligations attendant to marriage. As I blogged earlier, there appeared to be some danger that the court might opt for this path, which has been taken by other courts considering this issue and leads nearly ineluctably to a reified second class status for same-sex couples. (For an earlier post on why separate is seldom, if ever, equal, see here.)
This decision is already under threat, because opponents of same-sex marriage weeks ago submitted more than 1 million signatures in support of an effort to place a constitutional amendment banning same-sex marriage on the ballot in California this fall. Should that measure make it onto the ballot and be approved by the voters, the court’s decision today would be overturned and the victory fleeting. Interestingly, though, the ballot measure makes no mention of retroactive application, possibly setting the stage for another battle in the courts:this time over the status of those who marry between now and November. One bright spot, however, is that the ballot measure should not affect the California Supreme Court’s labeling of sexual orientation as a suspect classification and its resulting application of strict scrutiny to sexual orientation-based classifications. This alone is a quite important aspect of the decision and should survive the referendum that might take place this fall. (By way of aside, it is worth noting that, in reaching this decision, the court bypassed the question of whether sexual orientation is an”immutable”characteristic, opting instead to ground its decision in the fact that sexual orientation is an integral part of one’s identity:like religion:that one should not be required to change in order to avoid discrimination. The court also rejected the idea that lesbians and gay men must currently be politically powerless in order for sexual orientation-based classifications to warrant strict scrutiny, pointing out that adopting such a requirement would make it difficult to explain why California continues to apply strict scrutiny to race-, gender-, and religion-based classifications.)
I’ve seen elsewhere suggestions that the marriages that took place in San Francisco a few years back are now valid. This is not correct. That question was resolved by the California Supreme Court in an earlier decision that nullified all of those marriages. As Justice Kennard’s concurring opinion makes clear, today’s decision has no effect on that earlier ruling.
But, for at least one day, we should forget about the looming battle in the fall and rejoice in a great victory for LGBT rights.
-Anthony C. Infanti